. 1
To: The
Mr .
Mr.
Mr.
Chief Just i ce
J usti ce Dou&la~
Justi. ce Brennan
Justice Stewart
Mr. Ju::;ti ce Marsha ll
.-,j
~~ Justice BlacY~un
1..-f!r . Justic e Powell
Mr. Justice Rehnquist
From: White, J.
Nos. 73-1766 & 73-1834 - United States
v. Nixon
------Reoiroula ted: 1 -j.3 - ,Z,f..
The President challenges the subpoena duces tecum and
the judgment of the District Court denying the motion to
quash on two general grounds. First, it is urged that the
Special Prosecutor has failed to satisfy the requirements of
Rule 17(c) governing the issuance of subpoenas duces tecum
in criminal proceedings. Second, he insists that whether or
not Rule 17(c) has been satisfied, the subpoenaed materiqls
may be withheld in his absolute discretion pursuant to an
executive privilege, which is extended to him by the Constitution and is beyond review by the courts and which, if subject to judicial review, need not yield in the circumstances
of this case .
\\
.
Circulated:
'
Because a ruling favorable to the President under
Rule 17(c) would obviate our reaching major constitutional
issues with respect to the existence and scope of the
claimed executive privilege, we initially deal with whether
the requirements of Rule 17(c) have been satisfied. See
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346347 (1936) (Brandeis, J., concurring).
The rule provides·:
"A subpoena may also coiiDiland the person to
whbm it is directed to produce the books, papers,
documents or other objects designated therein.
The court on motion made promptly may quash or
modify the subpoena if compliance would be unreasonable or oppressive. The court may direct
that books, papers, documents or objects
designated in the subpoena be produced before
the court at a time prior to the trial or prior
to the time when they are to be offered in evidence and may upon their production permit the
books, papers, documents or objects or portions
thereof to be inspected by the parties and their
attorneys."
A subpoena for documents may thus be quashed if their produc- l/
tion would be "unreasonable or oppressive," but not otherwise.-
,.
-2In applying that standard, it has been established
that it is neither unreasonable nor oppressive to require
the production of documents that to a rational mind would
appear to contain or constitute relevant and admissible
evidence with respect to the guilt or innocence of
defendants charged with crime. Whether this is the entire
reach of the subpoenas issuable under 17(c), particularly
where either prosec~tion or defense is seeking documents
from a third party,-/ we need not decide; for we are convinced that the relevance and the evidentiary nature of the
subpoenaed tapes were sufficiently shown as a preliminary
matter to warrant the District Courtsrefusal to quash the
subpoena.
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Our conclusion is based on the record before us,
much of which is under seal. Of course, the contents of
the subpoenaed tapes cannot at this stage be accurately
demonstrated by the Special Prosecutor, but there is a
sufficient likelihood that each of the tapes contains conversations relevantl/ to the Watergate case and to the
proof of, or defense against, the charges against the
defendants in this case. With respect to many of the tapes,
the Special Prosecutor offered the sworn testimony or
statements of one or more of the participants in the conversations as to what was said at the time. As for the
remainder of the tapes, the identity of the participants
and timing of the conversations, taken in their total context, permit a rational inference that the so-called Watergate break-in or cover-up was one of the subjects discussed .
We also think it sufficiently likely that each of the
subpoenaed tapes contains evidence that is not only relevant
but also admissible with respect to the charges contained in
the indictment. The most cogent ~bjection to the admissibility of the taped conversations_/ here at issue is that
they are a collection of out-of-court statements by declarants not subject to cross-examination and are therefore
inadmissible hearsay. Plainly, however, the hearsay rule
does not automatically bar from evidence any relevant out-ofcourt statements of a defendant in a criminal case. Such
statements are not hearsay, but declarations by a party to
the case. They "would surmount all objections based on the
hearsay rule . . . " and, at least as against the declarant
himself, "would be admissible for whatever inferences" might
reasonably
drawn. United States v. Matlock,
U. S.
(1974) ·-
gj
-3Here most of the tapes contain conversations to which one or
more of the defendants were themselves party.
Declarations by one defendant would also be admissible
against other defendants if there has been a sufficient preliminary showing, by independent evidence, of a conspiracy
among the declarant and the other defendants, and if the
61
declarations at issue were in furtherance of that conspiracy.The same is true of declarations of co-conspirators who are
not defendants in the case on trial. As a preliminary matter,
there must be substantial, independent evidence of the conspiracy, at least enough to take the question to the jury.
United States v. Vaught, 485 F. 2d 320, 323(CA 4 1973);
United States v. Hoffa, 349 F. 2d 20, 41-42 (CA 6 1965), aff'd
on other grounds, 385 U.S. 293 (1966); United States v. Santos,
385 F. 2d 43, 45 (CA 7 1967), cert. denied, 390 U.S. 954
(1968); United States v. Morton:-483 F. 2d 573, 576 (CA 8
1973); United States v. Spanos, 462 F. 2d 1012, 1014 (CA 9
1972); Carbo v. United States, 314 F. 2d 718, 737 (CA 9 1963),
cert. denied, 377 U.S. 953 (1964). Whether the standard has
been satisfied is a question o~/admissibility of evidence to
be decided by the trial judge._
Here the trial judge was
quite satisfied as to the evidentiary nature of each of the
tapes, at least for the purposes of justifying a subpoena
for documents under Rule 17. · On the basis of the record
before us, we find no basis for disturbing this conclusion.
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Enforcement of a pre-trial subpoena duces tecum must
necessarily be committed to the sound discret~on of the trial
court, since the necessity for the subpoena most often turns
upon a determination of factual issues. Therefore, in the
absence of a finding of arbitrariness or a complete lack of
support in the record, a~pellate courts will not normally
disturb a District Court s determination that the applicant
for a subpoena complied with the standards of Rule 17(c).
See, e.g., Sue v. Chicago Transit Authority, 279 F. 2d 416,
419 (CA 7 1~); Shotkin v. Nelson, 146 F. 2d 402 (CA 10
1944). In cases such as this, however, where a subpoena is
directed to the President of the United States, appellate
review, in deference to a coordinate branch of government,
should be particularly meticulous to ensure that the
standards of Rule 17(c) have been correctly applied. From
our close scrutiny of the supportive materials submitted by
the Special Prosecutor to the District Court, we are fully
persuaded that the District Court's denial of tg~ President's
motion to quash was consistent with Rule 17(c),_/
·-~
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FOOTNOTES
1/ The leading case in this Court interpreting
Rule 17(c) is Bowman Dairy Co. v. United States, 341 U.S.
214 (1950). In dealing with a criminal defendant's access
to information in the hands of government prosecutors, it
recognized certain fundamental characteristics of Rule 17(c):
(1) it was not intended to provide additional means of discovery in criminal cases; 341 U.S., at 220; and (2) its
chief innovation was to expedite the trial by providing a
time and place before trial for the inspection of subpoenaed
materials. Ibid.
Lower federal court cases decided in the wake of
Bowman Dairy Co. have essentially adopted Judge Weinfeld's
four-part formulation in United States v. Iozia, 13 F.R.D.
335, 338 (SDNY 1952), for the showing a defendant must make
under Rule 17(c) to obtain materials from the prosecution
before trial:
(1) that the documents are evidentiary and
relevant; (2) that they are not otherwise procurable
reasonably in advance of trial by exercise of due diligence;
(3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and
that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made
in good faith and is not intended as a general fishing
expedition.
2L
The Special Prosecutor suggests that the evidentiary requirement of Bowman Dairb Co. and Iozia does not
apply in its full vigor when the su poena duces tecum is
issued to third parties rather than to government prosecutors. Brief for the United States, at 128-129. The
District Court found here that it was faced with "the more
unusual situation . . . where the subpoena, rather than
being directed to the government by the defendants, issues
to what, as a practical matter, is a third party." United
States v. Mitchell, ___ F. Supp. ___ (DC 1974).
31 Relevant evidence is customarily considered to be
"evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence." Proposed Federal Rules of Evidence,
Rule 401. The District Court in this criminal prosecution
has understood relevance to mean "'the tendency of the evidence to establish a material proposition.' McCormick on
Evidence§ 185 at 435 (1972 ed.)." United States v. Mitchell
et al.,
F. Supp.
, n. 5 (DC April 30, 1974) [op~n~on
and order-0n motions for disqualification].
-
...........---~--~-
--·~
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'·
FN p. 2
4/ The nature of the evidence sought here by the
Special-Prosecutor--tape recordings ~f conversations--is
not a bar to admissibility provided/proper showing is
made of accuracy and completeness. Stubbs v. United
States, 428 F. 2d 885, 888 (CA 9 1970), cart. denied, 400
U.S. 1009 (1971). "Where it is proper to testify about
oral conversations, taped recordings of those conversations
are admissible as probative and corroborative of the truth
concerning the testimony." Nixon v. Sirica, 487 F. 2d
700, 718 (CA DC 1973).
'\
5/ Other out-of-court declarations by a non-party
are not-barred as hearsay where they are not offered to
r.rove the truth of the matter asserted in the statements.
'If the significance of an offered statement lies solely
in the fact that it was made, no issue is raised as to the
truth of anything asserted, and the statement is not hearsay." Advisory Connnittee Note, Rule 80l(c), Proposed Federal Rules of Evidence. Also, of course, there are many
recognized exceptions to the hearsay rules. Certain statements made in the presence of the defendant, "concerning
assertions of fact which, if untrue, the party would under
all the circumstances naturally be expected to deny," might
be admissible against him as admissions by silence. C.
McCormick, supra, § 270, at ~51-652.
6/ See Glasser v. United States, 315 U.S. 60, 74
(1942);-C. McCormick, supra, § 267, at 645 n. 26;
Developments in the Law--Criminal Conspiracy, 72 Harv. L.
Rev. 920, 984-987 (1959).
7/ This discussion is not intended to exhaust all
possible theories for the subpoenaed material's admissibility.
Nor do we suggest that these materials, if sought to be
introduced by the Special Prosecutor, would necessarily be
admissible in fact at the trial.
8/ We also think that the Special Prosecutor has
clearly-made the additional showing necessary to justify
a subpoena for production before trial. Bowman Dairy Co. v.
United States, supra; United States v. Iozia, supra. The
subpoenaed materials are not available from any other source,
and their examination and processing will clearly be a timeconsuming matter that should not await trial.
'...'
-,...
,Jnpuntt (ijourl Df tlft ~~ ,Jtafts
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CHAMBERS OF
THE CHIEF .JUSTICE
July 15, 1974
Re:
73-1766 - U.S. v. Nixon
73-1834 -Nixon v. U.S.
MEMORANDUM TO THE CONFERENCE:
11
My effort to accommodate everyone by sending out
first drafts 11 is not working out.
I do not contemplate sending out any more material
until it is ready. This will take longer than I had anticipated
and you should each make plans on an assumption that no more
material will be circulated for at least one week.
Regards,
Ufv~
To
r4t-
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10
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cf t4t ~nitth ~tatttl
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CHAMBERS OF
JUSTICE BYRON R . WHITE
~
t~ ,
July 15, 1974
Re:
~
r--1"'
Nixon case
Dear Chief:
Your statement of the facts and your drafts on
appealability and justiciability are satisfactory to me,
although I could also subscribe to most of what is said in
other versions that have been submitted to you.
My views on the Rule 17(c) issue you already have.
With respect to the existence and extent of executive
privilege, I agree with Lewis Powell that there is an
executive privilege based on the need for confidentiality
and that the privilege is rooted in the Constitution. In my
view, however, the privilege does not extend to evidence that
is relevant and aamtsSib e 1n a criminal prosecution. The
public interest in enforcing its laws and the rights of
defendants to make their defense supply whatever necessity
or compelling need that may be required to reject a claim of
privilege when there has been a sufficient showing that the
President is in possession of relevant and admissible evidence. I cannot fathom why the President should be permitted
to withhold the out-of-court statements of a defendant in a
criminal case, or indeed, those of any witness in such a case
if they are relevant and admissible. For me, the interest in
sustaining confidentiality disappears when it is shown that
the President is . in possession of out-of-court declarations
of those, such as Colson and Dean, who have been sufficiently
shown to be co-conspirators. To be admissible at all, such
out-of-court declarations must be in furtherance of the
conspiracy. Shielding such a conspiracy in the making or in
the process of execution carries the privilege too _far.
I, therefore, differ with Nixon v. Sirica insofar as
it held that the Special Prosecutor must make some special
I
-2showing beyond relevance and admissibility. Necessarily,
then, the trial judge, who followed Nixon v. Sirica, did not
apply the correct standard in this case. I would adhere to
the views of the majority of the Conference that relevant
and admissible evidence in the possession of the President
must be submitted for in camera inspection. Of course, this
leads to an affirmance-.Sincerely,
~~
The Chief Justice
Copies to Conference
<!ftntrl of tqt ~ttittb ~huts
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CHAMBERS 0,..
JUSTICE WM . J . BRENNAN, JR.
July 15, 1974
RE: No. 73-1766 United States v. Nixon
No. 73-1834 Nixon v. United States
Dear Byron:
I fully agree with your expanded Sec.
17(c) treatment, recirculated July 13, 1974,
and hope it can serve to cover that issue in
the Court's opinion.
Sincerely,
;ltd
Mr. Justice White
cc: The Conference
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CHAMBER S OF
.JUSTICE POTTER STEWART
July 15, 1974
Re: Nixon Cases
Dear Chief,
I agree with Byron's revision
of the discussion of the Rule 17(c) issues.
Sincerely yours,
The Chief Justice
Copies to the Conference
I
..§n:.prmu <!fonrl a£ tltt ~~ ~tatt•
,ras!p:ltghtn. ~. <If.
2ll~'!~
CHAMeERS OF
THE CHIEF' .JUSTICE
July 15, 1974
Re:
73-1766 - U. S. v. Nixon
73-1834 -Nixon v. U. S.
MEMORANDUM TO THE CONFERENCE:
In my earlier memo today on our "timetable" I should
have mentioned that at Bill Douglas' urgent request I mailed him a
very rough draft of what I had worked up on the weekend on the
"privilege" section.
On reviewing it Sunday I came to the conclusion
that while it may be useful to Bill at his distance to show my
11
direction" it was far too rough and incomplete for circulation
and I will not circulate it generally •
..
. ·.·~
aJttu.d ttf tlrt 1!fuitth j>t!rlts
11lasJrhtgfttn.l{l. aJ. 2llbi'~;l
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CHAMBERS OF
July y? , 1974
JUSTICE THURGOOD MARSHALL
Re: Nixon Case
Dear Chief:
1. I agree with Byron's recirculation (July 13, 1974)
of the section on 17(c).
2.
I agree with Harry's Statement of Facts.
3. I agree with Bill Brennan's treatment of the section
on Justiciability.
4. I agree with Potter's memorandum on the question
of apJ:ealability.
Sincerely,
114II
T. M.
The Chief Justice
cc: The Conference
I
To:
'
I.
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\ HAM BERS OF
.JUSTICE WM . .J . B RE N N AN , .JR .
<q.
2Llgt'1-~
July 15, 1974
The~e~~tice
Justice Douglas
Mr.
Mr.
Mr.
Mr .
Mr.
Mr .
J usUce
Justice
Justice
Justice
Justice
rf .i~sti~
Stewart
WhitA
Marshal l
Blackmun
Powell
~e~nq~~~t
Fro~~n~~
Circulated: _ __=
--~--Recirculated: _ __ _ _ _
RE: No. 73-1766 United States v. Nixon
No. 73-1834 Nixon v. United States
Dear Lewis:
May I suggest two changes in your proposed Part IV with which
in all other respects I fully agree and can readily join.
First, at page 18, revise the sentence now reading "Subpoenaed
materials are 'essential to the justice of the case' if they are
a·dmissible, probative, not otherwise obtainable, or merely cumulative, and relevant and material to the resolution of the issues at
hand", (1) to delete the underscored words "or merely cumulative_"_
(otherwise we'd give the appearance of accepting St. Clair's argument that Jaworski already has all the evidence he needs and convert the whole proceeding before Judge Sirica into a fight over
whether he does or doesn't), and (2) to substitute for the underscored "at hand" the words "to be decided" and introduce the sentence
with the words "In the context of a criminal proceeding" (this is to
carry through our basic theme that what we say is confined to criminal
cases).
Second, Reword that part of page 20 beginning at the middle of
the page with the sentence "We think the District Court applied
the correct standard" and substitute
"We take this to be a conclusion that the Special
Prosecutor has demonstrated a strong likelihood that
the subpoenaed materials contain evidence that is not
only relevant but also admissible with respect to the
charges made in the indictment. (I wholly agree with
you that there must be a constitutional standard because the presidential privilege of confidentiality
has a constitutional source. But I think that this
showing satisfies the constitutional standard.) On
the basis of our own review of the Special Prosecutor's
.
.~
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f
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showing, we cannot say that the District Court erred
in ordering the President, on the basis of that conclusion, to submit the subpoenaed material to in camera
inspection. The District Court's conclusion establishes
that the production is 'essential to the justice of the
case', United States v. Burr, supra, and in that circumstance we hold that the presidential claim of privilege
must yield."
I also attach a suggested concluding part (I've numbered it V.
but that may not be the right figure). You will recognize it as-a
revision of pages 3 and 4 of my initial suggested Part IV circulated
on July 8. I call your particular attention to the concluding
sentence "The mandate shall issue forthwith." If the present timetable for trial on September 9 is maintained, I suppose we should
try to the extent we can to accommodate it.
Sincerely,
;M
Mr. Justice Powell
cc: The Conference
;-..;,
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16.
************
Proposed Part IV
In determining whether to order the President
to produce records of confidential communication for
use in a criminal trial, a court should be guided by
a solicitous concern for the effective discharge of
his duties and the dignity of his high office.
Of course,
no citizen should be subjected to unwarranted inroads
on his time or interruptions of his affairs, but the
·'
-:·public interest in preserving the confidentiality of
the Oval Office and in avoiding vexatious haras sment
of an incumbent President is of an entirely different
order of importance.
Consequently, we believe that
"[i]n no case of this kind would a court be required to
proceed against the President as against an ordinary
individual."
United States v. Burr, 25 Fed. Cas. 187,
191 (No. 14964)
(CCD Va. 1807)(per Marshall, C.J.).
Rather, courts should follow standards and procedures
designed to afford appropriate protection
. · · ~ ".
'
·.
17.
for the legitimate interests of the presidency
consistent with the overriding duty to ensure that
justice is done.
Ordering the President to produce confidential
records for use in a criminal proceeding involves
three decisional stages:
issuance of the subpoena,
response to the subpoena, · and in camera inspection.
The decision whether to issue a subpoena duces tecum
to the President is governed by the same standard
applicable to citizens generally.
"The guard, furnished
to this high officer, is to be looked for in the conduct
··/
·"" of the court after the subpoenas have issued; not in
any circumstance which is to proceed their being issued."
United States v. Burr, 25 Fed. Cas. 30, 34 (No. 14,692d)
(CCD Va.
1807)(~
Marshall, C.J.).
Faced with a judicial
demand for production of evidence for use in a criminal
trial, the President may well forego any claim of executive
privilege.
After all, he is charged by the Constitution
with the duty to "take Care that the Laws be faithfully
executed" and will doubtless be aware of the needs of
·~
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I
I
. ... .
"
18.
the criminal justice system.
If, however, the President
decides that release of the subpoenaed materials would
prove injurious to the public interest, he may invoke
executive privilege for his confidential communications
and so indicate in his response to the subpoena.
It is at this stage that the court must require
a special showing from the moving party.
As Chief
Justice Marshall stated, "on objections being made by
the president to the production of a paper, the court
would not proceed further in the case without such an
. affidavit as would clearly shew the paper to be
essential to the justice of the case".
111 ~e..
United States v.
[ OIJfeKt
~
Burr (No. 14,694), supra, at 192. ['iubpoenaed ~;t-~rials
resolution of the
and relevant
and material to the
1
(+o
b~ J~ c. 1'o -::!_j
issu e s~ .:J;t;:
b-and....
The· movant: must satisfy
the court of a strong likelihood that the materials sought
meet these criteria.
U.S. 1, 11 (1953).
·.'9··.
Cf. United States v. Reynolds, 345
The court's inauiry may have to occur
J )
---- -
admissible, probative , not otherwise obtainable.Js:t
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are "essential to the justice of the case" if they are
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19.
in stages, for instances may arise in which the requisite
determination can be made intelligently only after the
issues have crystallized during the course of the trial.
If the required showing has been made, and only
then, the court should order production of the subpoenaed
materials for in camera inspection.
The court's primary
functions in in camera proceedings are identification and
excision.
It must identify those statements that meet
the foregoing criteria and release them for introduction
into evidence, and it must excise all other material
and provide whatever summaries and abstracts are needed
to render the whole comprehensible.
Due care must be
taken to avoid release of extraneous material.
In the instant case the District Court first
evaluated the Special Prosecutor's showing by reference
to the standards that courts have read into Rule 17(c) of
the Fed. Rules of Grim. Proc. for subpoenas duces tecum
by defendants against the Government.
See Bmvman Dairy
Company v. United States, 341 U.S. 214 (1951); United
States v.
Iozi~,
13 F.R.D. 335 SDNY (1952).
Pursuant
to this inouiry, the District Court found that the
subpoenaed materials are evidentiary and relevant, not
Proposed Part V
On the basis of our conclusions in Parts I, II, III and
IV our decision is that the President shall transmit all of
the subpoenaed materials to the District Court for in camera
inspection, except that the President may initially withhold
production of materials concerning national defense, foreign
affairs or state secrets for which the President asserts a
specific claim that the public interest requires their nondisclosure.
However, in order for the District Judge to
determine whether to require submission of some or all of
such materials for an in camera inspection, the President,
on or before a date fixed by the District Judge, shall justify
,· the withholding by a written analysis .o utlining the basis for
his claim.
To aid the District Court, the Special Prosecutor
may be shown the analysis and heard in camera on the legitimacy of the President's claims.
The District Court should,
of course, accord the respect necessarily due the President's
judgment that disclosure would directly affect national defense, foreign affairs or state secrets.
If, however, the
President's analysis fails to satisfy the District Judge that
the specific claims asserted are "real and not merely colorable,"
Alderman v. United States, 394 U.S. 165, 199 (Harlan, J.,
concurring in part and dissenting in part), the District Court
shall order production, for an in camera inspection, of the
withheld materials as to which the District Court makes that
2.
determination.
(1953).
See United States v. Reynolds, 345 U.S. 1, 10
If following the in camera inspection, the District
Judge concludes that a reasonable basis for the specific claim
has not been shown, he shall order transmittal of the inspected
materials to the Special Prosecutor.
He shall, however, stay
the order for a reasonable time to provide the President an
opportunity to appeal.
721 n.lOO (1973).
See Nixon v. Sirica, 487 F.2d 700,
To insure confidentiality on appeal, ap-
propriate orders shall be entered sealing the record.
The
Courts of Appeals and this Court shall also stand ready to
enter such further orders as may be
requi~ed
to prevent un-
warranted disclosure of subpoenaed materials.
The President shall transmit directly to the District
Court forthwith, or within such additional time as the District
Court may fix for good cause shown, those materials for which
no specific claim limited to national defense, foreign affairs
or state secrets is made.
The District Court shall thereupon
excise all irrelevant, inadmissible, and extraneous matter,
see Dennis v. United States, 384 U.S. 855, 875 (1966), but
otherwise shall transmit all materials to the Special Prosecutor.
See Alderman v. United States, supra, at .181-182.
In the performance of this function, the District Court should
take care not to ursurp the responsibilities of the trial
advocates.
For the significance of an ''innocent phrase, a
- Rider A, p. 20
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of that conclusion, to submit the subpoenaed material to
i n camera l.nspectl.on.
•
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•
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lishes that the production is "essential to the justice of
the case," United States v. Burr, supra, and in that circumstance we hold that the presidential claim of privilege must
t
- 1
_,
3.
chance remark, or a reference to what appears to be a neutral
person or event," id., at 182, may be known, or later become
known, only to the lawyer who has fully prepared the prosecution or defense for trial.
Of course unwarranted use of
disclosed materials may be protected against by appropriate
protective orders.
The mandate shall issue forthwith.
Affirmed.
t/_
- .
--
't• Q/ ' I
(~~
/U-~ t)1~
~
IV.
UJ~~~4
Having determined that the requirements of Rule 17(c)
have been satisfied in this case, we must confront the President's claim that he is nonetheless entitled to have the subpoena
quashed because of a constitutional privilege to refuse to disclose confidential conversations with and among his aides and
advisers.
The President's first and broadest contention is
that the judiciary is without power to review this claim of
privilege once he has formally asserted it.
He argues alter-
natively that, even if his claim of privilege is subject to judicial
review, the courts should hold as a matter of constitutional law
that the privilege he has asserted must prevail over the subpoena duces tecum in this case.
!7/6)
- 2-
A.
We unreservedly reject the claim that the President
alone, by simple assertion of privilege, had the unreviewable
power to decide not to deliver the subpoenaed materials to the
District Court.
Under our Constitution, it is only the Judicial
Branch that is ultimately empowered to determine questions
of law, even though those questions may involve the scope of
*I
the other branches' powers.-
This basic postulate of our constitutional system was
strikingly confirmed a generation ago in Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, where this Court held
invalid the President's asserted power to seize the nation's
*
The only limiting principle is that expressed in l\1ississippi v. Johnson, 4 Wall. 475, which held that it is not for the
judiciary to determine whether or not the President is faithfully executing the laws. The Court there noted that "the duty
thus imposed [by Art. II] on the President is in no just sense
ministerial. It is purely executive and political. "
- 3steel mills.
Perhaps even more relevantly, several recent
decisions of this Court have made clear that it is for the
judiciary alone to delineate the scope of constitutional immunity
or privilege, even the explicit immunity conferred upon member s
of the Legislative Branch by the Speech and Debate Clause,
U. S. Canst. Art. I, sec. 6.
Doe v. Mcl\!Iillan, 412 U.S. 306,
318, n. 12; Gravel v. United States, 408 U.S. 606; United
· States v. Brewster, 408 U.S. 501; United states v. Johnson,
329
u.s.
503.
As the Court stated in Baker v. Carr, 369 U.S. 186,
211, and reaffirmed in Powell v. McCormack, 395 U.S. 486,
521, "[ d] eciding whether a matter has in any measure been
committed by the Constitution to another branch of government,
or whether the action of that branch exceeds whatever authority
- 4-
has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as
ultimate interpreter of the Constitution:' .. :'Our system of
government requires that federal courts on occasion interpret
the Constitution in a manner at variance with the construction
given the document by another branch. The alleged eonflict
that such an adjudication may cause cannot justify the courts'
avoiding their constitutional responsibility. " Powell v.
McCormack, supra, at 549 (footnote omitted).
We hold, in short, that no part of the "judicial power
of the United States" which Art. Ill, §1, of the Constitution
vests in the federal courts can by insistence of the President
on "executive privilege" be shared by him.
Any other view
would be false to the basic concept of the separation of powers
·;,
'.~
- 5-
that lies at the very heart of our constitutional structure -a structure whose primary purpose was to insure against
tyranny.
*I
As James Madison made the point, "[t]he accumu-
lation of all powers, legislative, executive, and judiciary, in
the same hands, whether of one, a few, or many, and whether
hereditary, appointed, or elective, may justly be pronounced
the very definition of tyranny. " The Federalist, No. 47, p. 313
(S. F. Mittel ed. 1938).
Under our Constitution, "no man can be judge in his
own case, however exalted his station, however righteous his
motives . . . . " Walker v. City of Birmingham, 388 U.S. 307,
320-321. As the Court put the matter in United states v. Lee,
*I
In the words of Mr. Justice Brandeis, "[t]he doctrine of separation of powers was adopted by the Convention of
1787 not to promote efficiency but to preclude the exercise of
arbitrary power. " Myers v. United States, 272 U.S. 42, 293.
~·
·.·•
- 6-
106
u.s.
196, 220:
"No man in this country is so high that he is above the
law. No officer of the law may set that law at defiance
with impunity. All the officers of the government, from
the highest to the lowest, are creatures of the law, and
'
are bound to obey it. "
And, in the classic words of Chief Justice Marshall in Marbury
v. Madison, 1 Cranch 137, 177: "It is emphatically the province
and the duty of the judicial department to say what the law is. "
The existence and scope of Presidential privilege is thus
a judicial question for the Judicial Branch alone to decide. It
is a question that must, therefore, be decided here and now.
,.·
..
- 7-
B.
If, as we have held, it is for the judiciary alone to de-
termine the existence and scope of Presidential privilege in any
given context, the President argues that we should determine
that the privilege must prevail over the subpoena duces tecum
issued in this case by the District Court at the request of the
Special Prosecutor in anticipation of a forthcoming criminal
trial.
We are a nation governed by the rule of law. Nowhere
is our commitment to this principle more profound than in the
enforcement of the criminal law, "the twofold aim of which is
that guilt shall not escape or innocence suffer." Berger v.
United States, 295 U.S. 78, 88 (1935).
Conviction of the guilty
and exoneration of the innocent are matters of the greatest
..
,·
··.,
- 8-
consequence for a people devoted to equal justice under law.
Individuals are subject to criminal penalties for conduct proscribed by society. The imposition of such penalties turns on
what was done and by whom and with what intent.
Enforcement
of the criminal law requires ascertainment of these facts. It
is, in short, a search for truth.
We have committed that pursuit to an adversary system
in which the parties contest all issues before a court of law.
To develop their opposing contentions of fact, the parties are
entitled to invoke the court's authority to compel production of
relevant evidence. Because the adversary nature of our system
is tempered by an overriding concern for fairness to the individual, the prosecutor has an obligation to reveal evidence
that may be favorable to the defense.
"The United States Attorney
- 9 -
is the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done." Berger v.
United States, supra, at 88. In addition, the accused has the
right to a fair trial by making the best possible defense on the
basis of all material evidence.
And the court itself has the
paramount duty to ensure that justice is done.
Accordingly,
the need to develop all relevant facts is both elemental and
comprehensive, for the ends of the criminal law would be defeated if judgments were founded on a fragmentary or speculative presentation of the facts.
To the extent that the search
for truth is restrained, the integrity of the process of criminal
~.
l
· ..
··,
'
- 10justice is impaired.
As a general proposition, therefore, the
law is entitled to every man's evidence.
See Branzburg v.
Hayes, 408 U.S. 665, 688 (1972).
This rule, however, is not absolute.
It admits of excep-
tions designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that
no man "shall be compelled in any criminal case to be a witness
against himself." And an attorney may not be required to reveal
what his client has told him in confidence. These and other interests are recognized at law by evidentiary privileges against
forced disclosure.
Such privileges may be established in the
Constitution, by statute, or at common law. Whatever their
origins, these exceptions to the demand for every man's evidence
are not lightly created nor expansively construed, for they are in
derogation of the search for truth.
.. '
- 11 -
In this case the President challenges a subpoena requiring the production of materials for use in certain criminal
prosecutions.
He claims that he has a privilege against com-
pliance with that subpoena. He does not contend that disclosure
of the subpoenaed material would compromise state secrets.
There is no claim that the conversations at issue involved matters of military planning or intelligence, sensitive aspects of
foreign affairs, or any other data whose disclosure would be
contrary to the national interest. Rather, the President grounds
his assertion of privilege in the generalized interest in preserving the confidentiality of his discussions with his advisers.
Because maintaining confidentiality for such discussions is
essential to his high office, he claims a privilege against forced
disclosure. The President further argues that only he can
- 12 assess accurately the degree to which disclosure in a particular case would impair the effective performance of his constitutional duties.
The President's argument rests in part on the nature
of government itself and in part on the tripartite division of
sovereign powers within our government.
All nations find it
necessary to shield from public scrutiny some of the deliberations that constitute the process of government. Those selected
to conduct the affairs of state must be free to speak plainly to
one another and to seek honest and forthright advice on matters
of national policy. Yet human experience teaches that those who
expect public dissemination of their remarks may temper candor
with a concern for appearances. The willingness to advance
tentative ideas, to play the devil' s advocate, and to reveal the
ultimate basis for a particular view may succumb to public
,.·
- 13posturing and a reticence born of the fear of appearing foolish.
That consequence would distort and impair the search for sound
public policy.
Accordingly, a general expectation of confi-
dentiality for deliberations among the officers of government
*I
and their advisers serves the public good.-
The framers of our Constitution understood this point.
When they undertook to draft the Charter for a fledgling nation,
they chose not to hold their debates in public. Rather, they
maintained the secrecy of their discussions until well after
ratification of the Constitution by the States.
Modern practice
reflects continued appreciation of the insight of the framers.
*I
- "Freedom of communication vital to fulfillment of
wholesome relationships is obtained only by removing the specter
of compelled disclosure .... [ G Jovernment ... needs open but protected channels for the kind of plain talk that is essential to
the quality of its functioning." Carl Zeiss Stiftung v. V. E. B.
Carl Zeiss, Jena, 40 F. R. D. 318, 325 (DDC 1966). See Nixon v.
Sirica,
u-:-s.-App. D. C.
,
, 487 F. 2d 700, 713 (1973);
Kaiser AlUminum & Chern. COrp:-Vo United States, 157 F. Supp.
939 (Ct. Cl. 1958) (per Reed, J.); The Federalist No. 64 (S. F.
Mittel ed. 1938). -
- 14-
For example, the House-Senate Conference Committees that
meet to resolve differences in bills that have passed both Houses
hold their proceedings in confidence. Similarly, the deliberations of this Court are conducted in utmost secrecy. In these
and other instances, officers of government need to be able to
rely on an expectation of confidentiality to facilitate plain talk.
That the need for confidentiality exists in any government does not mean, however, that it must always prevail over
competing societal interests.
See, e. g., Conway v. Rimmer,
1 All E. R. 874 (1968). Some greater public good may warrant
occasional inroads into the principle of confidentiality. The
Constitution does not explicitly mention the President's interest
in confidentiality. Yet to the extent that the interest in confidentiality pertains to the President's effective exercise of his
-!!:
•
...
- 15executive powers, it is nevertheless constitutionally based.
The Constitution does confer the right upon every defendant
"to be confronted with the witnesses against him" and "to
have compulsory process for obtaining witnesses in his favor. "
(Am. VI) And, of course, the Constitution also guarantees that
no person shall be deprived of liberty without due process of
law.
(Am. V) Because the production of all material evidence
in a criminal trial furthers those guarantees, it too is a matter
of constitutional import.
We must balance the essentiality of the privilege to the
President's performance of the responsibilities vested in him
- 16-
against the inroads of such a privilege on the fair administra-
*I
tion of criminal justice.-
The interest in confidentiality, as
distinct from the preservation of state secrets, is a generalized
concern. The goal is to promote candor by maintaining an
expectation of confidentiality rather than to preserve secrecy
for the substance of any particular communication. The asserted need to refuse to comply with a subpoena presumes that rare
and isolated instances of disclosure would negate the general
expectation of confidentiality and thus defeat the ability of the
President to obtain candid advice. We think that this assumption is unfounded.
I
*I
The willingness to speak plainly is not so
- We wish to emphasize the narrow scope of this inquiry.
We are not here concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and Congressional demands for information,
nor with that between the President's interest in preserving
state secrets and any other concern, whether originating in
Congress or the courts. We address only the conflict between
the President's assertion of a privilege not to divulge confidential conversations and the constitutional need for evidence material to criminal trials.
- 17fragile that it would be undermined by some remote prospect
of disclosure in narrowly defined and isolated circumstances.
At least this is true where the prospect of disclosure is limited
to demands for evidence demonstrably material to a criminal
no
prosecution. It requires/clairvoyance to foresee that such
demands will arise with the greatest infrequency nor any
special insight to recognize that few advisers will be moved to
temper the candor of their remarks by such an unlikely possi-
*I
bility.-
Thus, while the general interest in confidentiality
*I lVIr. Justice Cardozo made this point in an analogous context.
Speaking for a unanimous Court in Clark v. United States, 289 U.S. 1 (1933),
he emphasized the importance of mmnUiining the secrecy of the deliberations of a petit jury in a criminal case. "Freedom of debate might be stifled
and independence of thought checked if jurors were made to feel that thei.r
arg-uments and ballots were to be freely published to the world. " Id. , at 13.
Nonetheless, the Court also recognized tnat isolated inroads on ctmfidentiality designed to serve the paramount need of the criminal law would not
vitiate the Interests served by secrecy:
"A juror of integrity and reasonable firmness will not fear
to speak his mind if the confidences of debate are barred to the
ears of mere impertinence or malice. He will not expect to be
shielded against the disclosure of his conduct in the event that
there is evidence reflecting upon his honor. The chance that now
and then there may be found some timid soul who will take counsel
of his fears and give way to their repressive power is too remote
and shadowy to shape the course of justice. "_!?. , at 16.
- 18is weighty indeed, it is not significantly impaired by the damands
of criminal justice.
On the other hand, an unqualified privilege against dis-
closure of evidence demonstrably relevant to a criminal trial
would cut deeply into the guarantee of due process of law. While
the President's interest in confidentiality is general in nature,
the constitutional need for production of material evidence in a
criminal proceeding is not.
The enforcement of the criminal laws
does not depend on an assessment of the broad sweep of events
but on a limited number of specific historical facts concerning the
conduct of identified individuals at given times. The President's
broad interest in confidentiality would not be vitiated by disclosure of a limited number of confidential conversations, but
nondisclosure of those same conversations could gravely impair
the pursuit of truth in a criminal prosecution.
- 19Thus where the President's ground for withholding subpoenaed materials from use in a criminal trial is only the gen-
-~ ~~~~~~ o-x--Muc.dLL~;
eralized interest in
coilfidentialit ~ it
cannot prevail over the
~trU/.V~
.A needs
of due process of law in a federal criminal trial.
The
privilege of his office, although of constitutional dimensions,
is qualified in nature.
He may be ordered, therefore, upon a
*I
proper showing, to produce the requested materials.-
We
*I
tJ ~
ru""'
a
- No prior case from this or any other court resolves
the precise issue before us. Earlier prece~ts cited by the
parties have dealt with state secrets, e. g. , United States v.
Reynolds, 345 U.S. 1 (1953), with claims of executive privilege
by subordi~e executive officers in the context of civil trials,
e. g., ibid; Committee for Nuclear Responsibility
c. v.
"Se'"aborg,- App. D. C.
, 463 F. d 788 97· ; aiser Aluminum & Chemical Corp. T."United States, 157 F. Supp. 939 (Ct.
Cl. 1958); Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena,
40 F.R.D. 318 (CD 1966), aff'd on opinion below, 384 F.2d 979
(CADC 1967), cert. denied, 389 U.S. 952 (1968), or with the
unique responsibilities and powers of a grand jury. See Nixon
App. D. C.
, 487 F ~ 2d 700 (1973). Neverthev. Sirica,
less, our conclusion is in full accord with the principle underlying all of those cases -- that(fue privilege is faf' fpa~absolute as a matter of constitutional la~
j-{)~~
. P.~ f<.,~. AJ,I-'~.~.•,.,..~ ~-1~ v1-' v~--/ cJ ~~
/~·~c:~~ ~1
~~XP~~
I
.
~·
J
- 20do not reach this conclusion lightly nor do we wish to suggest
that courts may presume to order the President of the United
States to produce confidential materials absent sufficient justification.
The avoidance of unnecessary harassment of our
Chief Executive, the importance of the expectation of confidentiality for his discussions with his advisers, and proper
deference to the head of a coordinate branch of government who
is himself charged by the Constitution to "take Care that the
Laws be faithfully executed" suggest that courts should be as
reluctant to tread this ground as the sound discharge of their
constitutional responsibilities will allow.
Courts must follow
certain standards and procedures to assure that the President's
legitimate interests are adequately protected. It is to those
requirements that we now turn.